Linkside and Others v Minister of Basic Education and Others (3844/2014) [2014] ZAECGHC 111 (17 December 2014)
- Citation
- [2014] ZAECGHC 111
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Eastern Cape High Court, Grahamstown
- Panel
- J M Roberson
- Case number
- 3844/2014
More details
- Court
- Eastern Cape High Court, Grahamstown
- Panel
- J M Roberson
- Case number
- 3844/2014
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the amounts paid by class member schools to educators occupying substantive posts on the provincial educator establishment constitute debts against the state under the State Liability Act. The Eastern Cape Department of Education is obliged to reimburse these schools and to regularize the employment status of educators by issuing letters of permanent employment. The court further ordered the appointment of claims administrators to verify and disburse payments, and mandated transparent procedures for filling substantive vacancies, including the publication of open educator bulletins and compliance reporting. The respondents are required to pay the applicants' costs, including those arising from the implementation of the order.
Court disposition
Application granted. Orders issued for reimbursement, appointment regularization, vacancy filling procedures, and costs.
Orders
- It is declared that the amounts paid by class member schools to educators occupying substantive posts constitute debts against the state under the State Liability Act.
- The fourth respondent is directed to make payment of the amounts in question to each of the schools.
- A firm of registered chartered accountants is to be appointed as claims administrators within 20 days to distribute the amounts payable to individual schools.
- The Eastern Cape Department of Education must pay R81,445,339.99 to the claims administrators within 60 days.
- Claims administrators must verify entitlements and disburse payments within specified timeframes, and report to the court.
- If payment is not made, applicant schools may secure satisfaction in accordance with section 3 of the State Liability Act.
- The fourth respondent must issue letters of permanent employment to educators within 30 days.
- The Superintendent General must report to the court on compliance within 60 days and quarterly thereafter.
- The fourth respondent must publish open educator bulletins and fill vacancies according to specified procedures.
- Any party may approach the court for appropriate relief regarding any part of the order.
- The first to fourth respondents are to pay the applicants' costs, including costs of two counsel and claims administrators.
02
Material facts
Parties
Linkside & Others
Applicant Counsel: Adv S Budlender and Adv L SiyoMinister of Basic Education
Respondent Counsel: Adv S CollettDirector-General, Department of Basic Education
Respondent Counsel: Adv S CollettMember of the Executive Council, Department of Basic Education
Respondent Counsel: Adv S CollettHead of Department, Department of Basic Education, Eastern Cape Province
Respondent Counsel: Adv S CollettSouth African Democratic Teachers Union
Respondent Counsel: Adv S CollettNational Professional Teachers Organisation of South Africa
Respondent Counsel: Adv S CollettSuid-Afrikaanse Onderwysers Unie
Respondent Counsel: Adv S CollettAmounts and remedies
- Amount to Be Paid to Claims Administrators: ZAR 81,445,339.99
03
Procedural history
Posture
Civil Application / Final Order
04
Questions and positions
Legal issues
- 01
Whether the amounts paid by class member schools to educators occupying substantive posts constitute debts against the state under the State Liability Act.
- 02
Whether the Eastern Cape Department of Education is obliged to reimburse schools for payments made to educators in vacant substantive posts.
- 03
Whether the Department must issue letters of permanent employment to educators appointed to substantive posts.
- 04
What procedures must be followed to fill substantive vacancies in the provincial educator establishment.
- 05
Whether the respondents are legally required to fill vacant posts advertised in annual open bulletins within a specified period.
Party arguments
- Applicant
- The applicants argued that the Eastern Cape Department of Education failed to fill vacant substantive educator posts, forcing schools to pay educators from their own funds. They contended that these payments constitute debts against the state under the State Liability Act and sought reimbursement. They further requested that the Department issue letters of permanent employment to educators and implement transparent procedures for filling vacancies, including regular publication of open post bulletins and compliance reporting.
- Respondent
- The respondents disputed the applicants' entitlement to reimbursement, arguing that the payments were not debts against the state and that the Department had complied with its obligations. They contended that the appointment and payment of educators by schools did not create enforceable claims against the state and challenged the necessity and scope of the relief sought, including the appointment of claims administrators and the procedural requirements for filling vacancies.
05
Court’s reasoning
Legal principles
- 01
State Liability Act 20 of 1957
A debt owed by the state under the State Liability Act must be paid in accordance with the procedures set out in section 3 of the Act.
- 02
Employment of Educators Act 76 of 1998
The Employment of Educators Act requires the issuing of letters of permanent employment specifying remuneration for educators appointed to substantive posts.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the amounts paid by class member schools to educators occupying substantive posts on the provincial educator establishment constitute debts against the state under the State Liability Act. The Eastern Cape Department of Education is obliged to reimburse these schools and to regularize the employment status of educators by issuing letters of permanent employment. The court further ordered the appointment of claims administrators to verify and disburse payments, and mandated transparent procedures for filling substantive vacancies, including the publication of open educator bulletins and compliance reporting. The respondents are required to pay the applicants' costs, including those arising from the implementation of the order.
Obiter and limits
- The court emphasized the importance of transparent and accountable procedures in the appointment and remuneration of educators in public schools.
- The judgment highlighted the role of School Governing Boards in making recommendations for filling vacant posts and the need for timely action by the Department.
Court disposition
Application granted. Orders issued for reimbursement, appointment regularization, vacancy filling procedures, and costs.
- It is declared that the amounts paid by class member schools to educators occupying substantive posts constitute debts against the state under the State Liability Act.
- The fourth respondent is directed to make payment of the amounts in question to each of the schools.
- A firm of registered chartered accountants is to be appointed as claims administrators within 20 days to distribute the amounts payable to individual schools.
- The Eastern Cape Department of Education must pay R81,445,339.99 to the claims administrators within 60 days.
- Claims administrators must verify entitlements and disburse payments within specified timeframes, and report to the court.
- If payment is not made, applicant schools may secure satisfaction in accordance with section 3 of the State Liability Act.
- The fourth respondent must issue letters of permanent employment to educators within 30 days.
- The Superintendent General must report to the court on compliance within 60 days and quarterly thereafter.
- The fourth respondent must publish open educator bulletins and fill vacancies according to specified procedures.
- Any party may approach the court for appropriate relief regarding any part of the order.
- The first to fourth respondents are to pay the applicants' costs, including costs of two counsel and claims administrators.
Source and reliance status
Eastern Cape High Court, Grahamstown
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Eastern Cape High Court, Grahamstown
Order
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN
CASE NO: 3844/2013
DATES HEARD: 12/12/2014
DATE DELIVERED: 17/12/2014
In the matter between
LINKSIDE & OTHERS.............................................................................................APPLICANTS
and
MINISTER
OF BASIC EDUCATION.............................................................1ST
RESPONDENT
THE DIRECTOR-GENERAL,
DEPARTMENT
OF BASIC EDUCATION....................................................2ND
RESPONDENT
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF BASIC EDUCATION......................................................3rd
RESPONDENT
THE
HEAD OF DEPARTMENT
DEPARTMENT OF BASIC EDUCATION,
EASTERN
CAPE PROVINCE........................................................................4TH
RESPONDENT
SOUTH
AFRICAN DEMOCRATIC TEACHERS
UNION................................................................................................................5TH
RESPONDENT
NATIONAL
PROFESSIONAL TEACHERS
ORGANISATION
OF SOUTH AFRICA........................................................6TH
RESPONDENT
SUID-AFRIKAANSE ONDERWYSERS UNIE.…..................................... 7TH RESPONDENT
ORDER
ROBERSON J:-
[1] In respect of the specific amounts paid by the class member schools to educators occupying substantive posts on the provincial educator establishment set out in Annexure “A” to the notice of motion.
[1.1] It is declared that each of the amounts constitutes a debt against the state in terms of the State Liability Act 20 of 1957 (“State Liability Act”);
[1.2] The fourth respondent is directed to make payment of each of the amounts in question to each of the schools in question;
[1.3] To comply with prayer 1.2 above,
[1.3.1] The fourth respondent is directed within 20 days of the court order to appoint a firm of registered chartered accountants to serve as claims administrators (“the Claims Administrators”) to distribute the amounts payable to individual schools as members of the class and advise the court of their identity,
[1.3.2] The fourth respondent is directed to ensure that the Eastern Cape Department of Education pays the amount of R81,445,339.99 to the Claims Administrators appointed in terms of paragraph 1.3.1 above within 60 days of this order.
[1.3.3] The Claims Administrators, acting in consultation with the legal representatives of the class (the Legal Resources Centre), shall:
[1.3.3.1] within 60 days of the appointment of the Claims Administrators, verify each class member’s entitlement to the amount claimed by confirming the existence of a vacant substantive post for the year in question, and proof of the appointment and payment of an educator to that post by members of the class;
[1.3.3.2] within 30 days of verifying the entitlement of each class member, disburse payments to the class in accordance with their claims as set out in Annexure “A” to the notice of motion;
[1.3.3.3] thereafter, within 30 days, return any balance of funds that are not required to be distributed to class members to the Eastern Cape Department of Education;
[1.3.3.4] thereafter, deliver a report to the court setting out all the steps taken by the Claims Administrators to disburse payments and to comply with this order.
[1.4] If the first to fourth respondents fail to make payment to the Claims Administrators, the applicant schools may secure satisfaction of the amounts due in accordance with the procedures set out in terms of section 3 of the State Liability Act.
[2.1] The fourth respondent is directed to issue these educators with letters of permanent employment, specifying their remuneration, in terms of the Employment of Educators Act 76 of 1998, within 30 days of the date of this order.
[2.2] The Superintendent General is directed to report to this court within 60 days of the court order and thereafter on a quarterly basis until this order has been complied with in full, such report to include at least:
[2.2.1] details of the steps taken to comply with paragraph 2 of this order;
[2.2.2] a list of all educators who have been provided with letters of appointment;
[2.2.3] copies of the letters of appointment; and
[2.2.4] confirmation that they have been paid at the levels specified in the letters of appointment.
[3] In respect of all substantive vacancies after the appointment of the educators in Annexure “B” to the notice of motion:
[3.1] The fourth respondent is directed to publish an open educator bulletin by not later than 30 April 2015 which shall include a request that responses to the bulletin be submitted directly to all schools.
[3.2] The School Governing Boards (“SGBs”) of the applicants may interview and make recommendations to fill these posts within 30 days.
[3.3] It is declared that, in the event that the first respondent and the fourth respondent fail to act on such recommendations of the School Governing Boards within 15 days, the educators will be deemed to have been appointed, in which event the fourth respondent is directed to issue each such educator with a letter of appointment within 10 days thereafter,
[3.4] The fourth respondent is directed to publish at least four open post bulletins a year; the first before the end of April 2015, the second before the end of July 2015, the third before the end of September 2015, and the fourth before the end of November 2015.
[3.5] The fourth respondent is directed to circulate the drafts of the post bulletins to the relevant schools, within a reasonable time prior to publishing them, so that the schools can confirms the information and correct any errors.
[4] It is declared that the first and fourth respondents are legally required to take all necessary steps to fill the vacant posts
advertised in the four annual open bulletins with permanent named educators within 60 days of the advertisement of the open bulletins.
[5] Any party (including any member of the class) may approach the court, on reasonable notice to all other parties and on duly supplemented papers, to seek appropriate relief in respect of any part of this order. In the event of any dispute of fact regarding any amount payable in terms of this order or any other issue that cannot be resolved on motion, any party may refer the issue(s) to oral evidence.
[6] It is directed that the first to fourth respondents are to pay the applicants’ costs, including the costs of two counsel, and including any disbursements arising from the implementation of this order and the costs of the Claims Administrators.
Reasons for this order are to follow.
______
J M ROBERSON
JUDGE OF THE HIGH
COURT
Appearances:
For the Applicants: Adv S Budlender and Adv L Siyo, instructed by Legal Resources Centre, Grahamstown
For the Respondents: Adv S Collett, instructed by NN Dullabh & Co, Grahamstown
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